Plaintiff

Limited Liability Company Maritime Comprehensive Heavy Liability Company

May 20, 2011

Jeonju District Court Decision 2009Kadan22084 Decided June 11, 2010

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On March 5, 2008, it is confirmed that the closing party, a corporation, deposited with the Jeonju District Court No. 565 on 2008, the deposit payment claim for KRW 8,500,580 out of KRW 12,00,000, was against the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On September 1, 2004, the closing party Co., Ltd. (hereinafter “the closing party”) leased the 310-12,000,000 won of the lease deposit to the non-party limited liability company (hereinafter “non-party limited liability company”).

B. On the other hand, the defendant acquired the above claim for the return of the lease deposit against the non-party company's closing party, while the non-party company asserted that it did not transfer it, and demanded the return of KRW 12,00,000 to the closing party, the non-party company argued that it is the genuine right holder, and the closing party requested the return of KRW 12,00,000 to the party. On March 5, 2008, the closing party did not know that anyone among the defendant and the non-party company is the true right holder of the above right for the claim for return of the lease deposit without negligence, pursuant to Article 487 of the Civil Act, the Jeonju District Court of March 5, 2008, issued a deposit of KRW 12,00,000 (hereinafter "the deposit of this case") with the defendant or the non-party company as the defendant or the non-party company.

C. Meanwhile, on the other hand, on April 7, 2008, the Plaintiff obtained a provisional seizure order of the claim against the non-party company as to KRW 8,071,00,00 from the claim for the transfer of the claim against the non-party company as of March 15, 2008, regarding KRW 8,071,00 from among the claim for the transfer of the deposit of this case against the non-party company's Republic of Korea. The Plaintiff was issued a provisional seizure order of the claim by the Jeonju District Court 2008Kadan1686 on July 31, 2008, with the original copy of the payment order of the Jeonju District Court 2008Da2521 on July 31, 2008 as to KRW 8,50,580 from the claim for the transfer of the provisional seizure of the claim (hereinafter "the seizure and collection order of this case"). The seizure and collection order of this case were served to the Republic of Korea as the third debtor at that time.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

As a lawsuit in this case, the Plaintiff is the non-party company, and the Plaintiff, as the creditor of the non-party company, sought confirmation that the claim for payment of deposit of KRW 8,500,580 out of the deposit money was made against the Defendant on the ground that the Plaintiff is the collection creditor subject to the collection order for the seizure and collection of the claim.

With respect to the legitimacy of the lawsuit of this case ex officio, the person entitled to claim the withdrawal of the deposited goods is the person to whom the deposited goods are deposited or his successor, and the deposited person is determined formally by the statement of the deposit. Thus, even if a creditor under substantive law is a creditor, the right to claim the withdrawal of deposited goods may not be exercised unless the deposited person is designated as the deposited person. Therefore, even if a third party, other than the deposited person, has received a judgment confirming the right to claim the withdrawal of deposited goods against the deposited person, the third party who received the confirmed judgment cannot directly claim the withdrawal of deposited goods (see Supreme Court Decision 2005Da67476, Aug. 25, 2006).

In light of the above facts and legal principles, in this case where the closing party made a relative non-deposit deposit with the defendant or non-party company as the principal of the deposit, on the ground that the principal of the right to claim the return of the above lease deposit could not be known without negligence, even though the plaintiff was adjudicated against the defendant that the right to claim the return of the deposit of this case is the plaintiff, the plaintiff cannot be deemed to have the status of the principal of the deposit party. Thus, the plaintiff's claim of this case cannot be deemed to be an effective and appropriate means to eliminate the existing unstable and danger in the rights or legal status, and thus, it shall be deemed unlawful as there is no benefit of confirmation (the collection creditor against the right to claim the return of deposit of this case can exercise all the rights necessary for the collection against the third party in his own name on behalf of the principal of the debtor, and may claim the payment of the deposit to the deposit officer with the original copy of the collection order and the certificate of delivery attached thereto. Thus, the plaintiff can exercise his right to claim the return of the deposit of this case after confirming

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance is unfair in conclusion, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

Judges Kim Jong-soo (Presiding Judge)